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Law and Disorder

Published on
Jan 21, 2011

When a day on the water becomes a nightmare in court.

By Pete Mcdonald

We live in a society of laws. And with laws come a special subset of our species-lawyers. They need to eat, too. And they get to because any time something goes wrong, someone is always looking for someone else to blame. Hence, our community based on laws has become a society of litigation. This extends all the way out to the water, even when you’re doing something as innocuous as enjoying your boat on a sunny summer weekend.

You may think that, because you believe you’re obeying the letter of the law, you’re immune to fallout from legal mishaps. But if you get involved in a situation at sea, even if it seems perfectly legal, there’s probably a party on the other end willing to come after you, and a lawyer anxious to hang you out to dry.

This isn’t meant to scare you off the water, because 99.9 percent of the time you’ll be fine. But there could come a day where you think you’re doing the right thing-and it turns out all wrong. A day where you may feel innocent, but you’re still guilty.

We came up with four likely scenarios and asked lawyers from Florida for their opinions. Although every state has its own laws-all of which are superseded by federal laws for navigable waterways-we chose Florida because it has the most registered boats and because it’s the only state with a bar that requires board certification on admiralty and maritime law. When it comes to law on the water, Florida lawyers are among the best.

Take a look at the following slices of everyday boating life, situations in which you might be wrong, even if you think you’re right.

WITH FRIENDS LIKE THESE…

"If he did it, why are they suing me?"

You take some friends out on a cruise and anchor in a quiet cove. One of your buddies decides he wants to do some exploring ashore. You and the other passengers are perfectly happy staying onboard, so you lower the dinghy, put gas in the kicker, and send him on his way. The guy is an experienced boater and even a kid could handle the 9’ RIB. You go back to your lunch and all is well, until a few minutes later when you hear yelling.

You go on deck to see your friend coming back in the dinghy with another person. The two climb onboard and your buddy says that on the way to the beach he didn’t see the tiny dive flag attached to a float and ran over a diver. The diver’s arm is cut up, but all things considered, he’s in good shape. You call the Coast Guard, who picks up the diver and takes him to the hospital, where he receives treatment for minor injuries. Your friend is worried, expecting legal troubles. But three weeks later you get the call from the diver’s lawyer.

How could this be when it was your friend who did the damage?

The Law: "A key distinction between accidents occurring in state waters versus federal navigable waters is the personal liability of a vessel’s owner," says Jhan Lennon, an attorney with the law firm Rutherford Mulhall in Boca Raton. In general, an owner is not liable (legally responsible) for an accident that occurs on a lake or other waters under state jurisdiction unless he is the operator or is onboard at the time. But in navigable waters where federal maritime law applies, an owner can be held liable for the operator’s negligence.

Maritime Law and Practice, published by the Florida Bar, states that on navigable waterways, when it can be conclusively determined that a certain vessel caused an accident but not who the driver was, authorities will often refer the matter to the Coast Guard, which may levy sanctions against the offending vessel without regard to the identity of the operator. This is also the case in noncontact accidents where the wake of a passing vessel damages a moored boat or causes a someone to fall overboard or fall within the boat (see "Wake Woes").

Protect Yourself: Better make sure your friend is responsible, sober, and knows how to drive a boat as well as, or better than, you do. It’s not a bad idea to make sure your boat is covered under an umbrella liability insurance policy, so you have protection no matter who is behind the wheel.

TOW TROUBLES

"I was just trying to be a nice guy."

You’re out enjoying a leisurely cruise when you come across a bowrider that is clearly adrift. You slow down and circle back as the driver of the boat waves frantically. He points to his raised engine hatch, indicating engine failure. Knowing full well that under federal law you’re bound to provide assistance, you idle over to give the stranded boater a tow. You attach the towline correctly to his bow eye, so as not to put undue strain on his deck cleats (one could pop out and become a deadly missile). You maintain a proper towing speed to keep both vessels under control. But on the way through a narrow channel you negotiate a tight turn incorrectly, swinging his boat out of the channel and onto an oyster bar. The bowrider suffers several scratches to its bottom, and the guy’s wife, who was standing in the cockpit, hits her head on the windshield and requires stitches.

Now the owner of the distressed bowrider is suing for repairs and his wife’s medical expenses. You counter that you should be protected from liability because you were helping a vessel in distress and should be covered under Good Samaritan laws.

The Law: According to our experts, boaters who think that the Good Samaritan approach will shield them from liability could be thinking wrong. "You won’t find statutes," says Joan Wenner, a maritime lawyer from Orlando. "But there is case law in contributory negligence." In plain English: "People don’t realize that if they try to help someone, they could be sued."

Different states have different rules, but even if your state has a Good Samaritan law on the books designed to indemnify people who come to the aid of others, it may not keep you out of trouble.

But wait, the federal rule says you are bound to help, so how can you be punished for doing so? Simple: If you mess up, you could open the books for civil action. "The general rule is that once you undertake a ’duty,’ you have an obligation to carry out that duty properly," says Lennon. "Any negligence, real or perceived, in helping someone could create a civil liability for you for property damage or personal injury."

Adds Gerald McGill, a maritime attorney with the McGill Law Firm in Pensacola, "If you tow someone’s boat over a sandbar, you may be liable."

Protect Yourself: By all means, help your fellow boater. It’s your obligation. But don’t get in over your head by performing a task that you and your boat aren’t capable of. If the people on the stranded boat aren’t in imminent danger, your best choice might be to stand by and wait with them until a professional tow company shows up.

WHIRL, INTERRUPTED

"He panics, and I get sued?"

It’s Memorial Day weekend and every boater with a pulse is out playing in the wet stuff. Too crowded with nut jobs for you. But your kids are dying to go tubing, so you load them onto the family deckboat and cruise to a local bay. It’s packed, but you eke out a stretch of open water suitable for tubing. You’re a conscientious parent, so you put your two kids in life jackets, your wife is assigned to spotter duty, and you also have a rearview mirror so you can monitor the action underway. You take the kids on a few loops and turn back into your wake to give them a thrill with a high bounce. Somehow, you don’t notice the kayaker coming toward your wake. Your kids get thrown from the tube, so you quickly turn and spin to pick them up. In your turn, the unmanned tube nearly skims over the kayaker, causing him to flip and lose his expensive fishing gear. He wants you to pay for it.

The Law: "If you’re perceived as creating an unsafe situation," says Wenner, "you could be liable." Remember, civil penalty operates on a lesser standard than criminal penalty, so even if you’re not cited by a marine patrol officer, you could wind up with a litigation problem. You have a duty of care to judge sea conditions and prepare for the unexpected. Maritime Law and Practice states that, with regard to towing skiers (tubes apply here), "The boat operator must not drive the boat in such a way as to cause the water skis or other similar device to collide with any fixed objects.… An operator is not necessarily in violation of this statute, however, if the skier causes an accident."

Lennon adds that you have to be aware of the other vessels around you and act accordingly. "Failure to do so," he says, "is considered careless operation."

Protect Yourself: Watch out for the big two: reckless or careless operation. Reckless means you knowingly put others in danger. Careless means you did so out of ignorance, which is no excuse. You are always responsible for operating in a prudent manner.

WAKE WOES

"The boat was out of sight. I didn’t know it was there."

You’ve come out of a long no-wake zone and are raring to hit the throttles. You give a 360-degree scan of the water before powering up but don’t see the fisherman in a small skiff inside a cove off the channel just beyond the "Resume Normal Operation" sign. Coming onto plane, your boat lays down a huge wake. You don’t see it happen, but the angler in the cove is standing with his back to the channel, gets caught off guard, and is thrown overboard, breaking his arm in the process. One of his passengers takes down your boat name and a couple of weeks later, the injured owner notifies you of his intent to sue. He says your boat is listed in an official police report that lists an eyewitness who saw your boat throwing up the large wake. You counter that you were in a stretch of water without posted speed or wake restrictions and therefore can’t be held accountable.

The Law: Once again, there’s that catchall rule of reckless or careless operation that puts you behind the legal eight ball. According to Maritime Law and Practice, federal law considers it "grossly negligent operation" when there is actual endangerment of life, limb, or property. The Florida statute, however, says you could be found guilty of reckless operation if your conduct is "likely to endanger" life, limb, or property. This includes making waves. So you could be in trouble.

"There are several cases where people throwing wakes are forced to pay up," says Wenner. "The courts have upheld these many times."

Most states have a law that makes this clear: All boat operators are responsible for operating their vessel in a reasonable and prudent manner with regard to other vessel traffic so as not to endanger people or property. "Even if you think you’re abiding by the law," says Lennon, "it doesn’t take away the ’reasonable and prudent’ factors."

Protect Yourself: You’ll throw less of a wake for less time, and save money on gas, if you firewall those throttles, then ease off as you approach cruising speed. The worst wake speeds are usually between 6 and 22 mph. If you’re already on plane and want to pass a boat without rocking it, you have two choices: Remain on a fast plane and stay as far away as possible, or come off plane at least 100 yards from the other boat, idle past, and don’t resume speed until you’re sure you’re safely past the other boat.